IN THE SUPREME COURT OF BRITISH COLUMBIA
Block v. British Columbia (Minister of Public Safety),
2012 BCSC 200
Amanda Inglis, Damien Inglis (by his litigation guardian Amanda Inglis), Marie Pete, Natasha Lesopoy, Nataya Lesopoy (by her litigation guardian Natasha Lesopoy), Patricia Block, and Kayla Stone
Minister of Public Safety and Solicitor General of British Columbia, Attorney General of British Columbia, and Lisa Anderson as Warden of Alouette Correctional Centre for Women
Before: The Honourable Madam Justice Ross
Reasons for Judgment
Counsel for the Plaintiff Patricia Block:
M. Hobkirk (A/S)
Counsel for the Defendants:
E.W. (Heidi) Hughes
Place and Date of Hearing:
January 13, 2012
Place and Date of Judgment:
February 9, 2012
 This is an application brought by the defendants, the Minister of Public Safety and Solicitor General of British Columbia, Attorney General of British Columbia and Lisa Anderson as Warden of the Alouette Correctional Centre for Women, for an order pursuant to Rule 9-5(1)(b) and (d) and the inherent jurisdiction of the Court, that the action be dismissed on the ground that the plaintiff, Patricia Block, lacks standing to advance the claims made in the Statement of Claim.
 The action concerns the cancellation of the only program in the British Columbia correctional system that provided for mothers of infants to live with and care for their children while incarcerated. The action seeks to establish that both mothers and infants have constitutional rights to remain together during the incarceration of the mothers in the provincial corrections system.
 The Alouette Correctional Centre for Women (“ACCW”) opened in April 2004 as the provincial medium security correctional facility for female offenders in British Columbia.
 Shortly after opening, ACCW developed and offered a program that accommodated women giving birth while incarcerated, and allowed infants to remain with their mothers (the “Mother-Baby Program”).
 ACCW’s population includes a high number of women with fractured family backgrounds and aboriginal women who have experienced the residential school care system and who have a history of state apprehension. In addition, a significant portion of the women incarcerated at ACCW are mothers. When compared with the general population, a higher percentage of these mothers have had their children taken from them by the Ministry of Children and Family Development (“MCFD”) in the past, and have children currently under institutional care or care overseen by MCFD.
 The Mother-Baby Program was cancelled effective April 2008. There were no similar programs in the British Columbia provincial correctional system. The only similar program in the province is the federal Mother-Child Program (the “Federal Program”), which is offered at the Fraser Valley Institution (“FVI”) in Abbotsford.
 On November 1, 2011, 93 women were incarcerated in provincial correctional facilities in British Columbia. Of those, 47 were identified as aboriginal women. During the period February 2008 to December 16 2011, 12 women gave birth to children while incarcerated in provincial correctional facilities in British Columbia.
 In July 2008, Ms. Block was pregnant and began to receive pre-natal care from her family doctor.
 In September 2008, Ms. Block was arrested and charged with possession of cocaine for the purposes of trafficking. She was remanded to ACCW. Ms. Block pleaded guilty to the charges approximately 1½ months later. At the time of her sentencing, Ms. Block was approximately 4½ months pregnant and due to deliver her baby in March 2009.
 Due to the cancellation of the Mother-Baby Program and the absence of any comparable programs in the provincial corrections system, Ms. Block requested a two-year federal sentence at her sentencing in October 2008 in order to have the opportunity to apply for the Federal Program at FVI.
 Ms. Block was not accepted into the Federal Program. One of the reasons given was that, due to the short length of her sentence and anticipated parole, she would not remain at FVI long enough to complete certain programs. Ms. Block’s daughter, Amber, was born on March 17, 2009. Amber was removed from Ms. Block’s care.
 After her release from FVI, Ms. Block completed certain counselling and other programs. In July 2009, Amber was returned to her care pursuant to an agreement with the MCFD. Since then Ms. Block has married Amber’s father, completed a culinary program, obtained employment and regained custody of her daughter Jade.
 Ms. Block currently resides in Penticton with her husband and two of her three daughters. Her oldest daughter, Alana, is attending university.
 The Writ and Statement of Claim in this action were filed November 10, 2008. At the time the action was initiated, the plaintiffs were described as follows:
1. The plaintiff Amanda Inglis is an Aboriginal person from Williams Lake. On December 4, 2007, Ms. Inglis was sentenced to twenty-one months in addition to time served. At the time of her sentencing, she was twenty-two years old and five months pregnant.
2. The plaintiff Damien Inglis is an infant born March 25, 2008 at Fir Square. His mother is the plaintiff Amanda Inglis.
3. The plaintiff Marie Pete is an Aboriginal person from the Wet’suwet’en Nation. She is currently an inmate at the ACCW. Ms. Pete is pregnant. Her due date is on January 26, 2009, prior to her scheduled release from ACCW. Ms. Pete is serving a 16 month sentence after pleading guilty on June 30, 2008.
4. The plaintiff Natasha Lesopoy is an Aboriginal person, from the Cree Nation in Manitoba. She gave birth to her daughter, Nataya Lesopoy, while in custody at ACCW.
5. The plaintiff Nataya Lesopoy is an infant born August 28, 2008 at Surrey Hospital. Her mother is the plaintiff Natasha Lesopoy.
6. The plaintiff Patricia Block is currently an inmate at ACCW. She is expected to be transferred to the Fraser Valley Institution (“FVI”), a Federal correctional institution for women in the near future. She is pregnant and due to deliver her baby on March 14, 2009, prior to the end of her two year sentence on October 20, 2009.
7. The plaintiff Kayla Stone is currently an inmate at ACCW. She is pregnant and due to deliver her baby on November 8, 2008, prior to her scheduled release on July 25, 2009.
All of the plaintiffs, except Ms. Block, chose to discontinue and now Ms. Block remains the only plaintiff.
 The Statement of Claim alleges that the cancellation of the Mother-Baby Program infringed the rights of both mothers and infants under ss. 7, 12 and 15 of the Charter. The Statement of Claim alleges that the cancellation of the Mother-Baby Program has, among other things:
(a) seriously interfered with the psychological integrity of babies and mothers, including Ms. Block, involved with the corrections system; and
(b) disproportionately affected and systematically discriminated against aboriginal women and babies, and non-aboriginal women.
 The relief sought includes (a) a declaration pursuant to s. 24(1) of the Charter setting aside the cancellation of the Mother-Baby Program on the basis that the cancellation violated ss. 7, 12 and 15 of the Charter and (b) alternatively, a declaration pursuant to s. 52(1) of the Constitution Act, 1982 that s. 38(2) of the Correction Act Regulation, B.C. Reg. 191/2007, which sets out the defendants’ jurisdiction regarding programs for inmates, is invalid by virtue of its inconsistency with ss. 7,12, and 15 of the Charter.
 Counsel submits that this action is a case of first impression. There are no reported Canadian cases considering the constitutional rights of mothers and babies to remain together during incarceration and the obligations of the corrections system to accommodate and respect these rights.
 Section 24(1) of the Charter provides:
24.(1) Anyone whose rights or freedoms, as guaranteed by this Charter, have been infringed or denied may apply to a court of competent jurisdiction to obtain such remedy as the court considers appropriate and just in the circumstances.
 In this action, Ms. Block alleges that her rights under the Charter were infringed by the state action of canceling the Mother-Baby Program. She alleges that as a result, she was forced to choose between the possibility of remaining with her newborn in the federal correctional system for a two year sentence, and a shorter sentence in the provincial correctional system. It is alleged that she suffered serious interference with her psychological integrity.
 Ms. Block’s counsel submits that Ms. Block has standing pursuant to s. 24(1) of the Charter to seek, at a minimum, the declaration sought in the action. The defendants submit that there is no authority to view s. 24(1) as separate or distinct from the principles established in relation to private and public interest standing concerning standing in relation to claims brought pursuant to s. 52.
 However, there is a difference between the two provisions relevant to standing. Madam Justice Saunders, for the court, in Downtown Eastside Sex Workers United Against Violence Society v. Canada (Attorney General), 2010 BCCA 439 [Downtown Eastside], described the difference between a s. 24(1) remedy and a s. 52(1) remedy at para. 35 as follows:
In my view, a s. 24(1) remedy is not available to Ms. Kiselbach in a claim of this sort, as she seeks only to challenge legislation and not state action. The Supreme Court of Canada has confirmed that s. 52(1) relates to unconstitutional laws, and s. 24(1) is a remedy for government action that violates the Charter: Schacter v. Canada,  2 S.C.R. 679, 93 D.L.R. (4th) 1, R. v. Ferguson, 2008 SCC 6,  1 S.C.R. 96.
 The authorities relied upon by the defendants pertain to actions challenging the validity of legislation. No authority has been provided that would limit standing where there has been an allegation of a breach of Charter rights by state action.
 In the present case, the Statement of Claim challenges both government action (the cancellation of the program) and legislation (s. 38(2) of the Correction Act Regulation). Ms. Block has alleged that her Charter rights were infringed by state action. It is not for the Court on this application to address the merits of her complaint. I agree with the submission of Ms. Block’s counsel that, at a minimum, Ms. Block has standing to pursue her claim for relief pursuant to s. 24(1).
 Ms. Block submits that in addition and in the alternative, she has private standing to seek the balance of the relief sought in the Statement of Claim. She submits that the decision to cancel the Mother-Baby Program directed her agreement to a federal rather than provincial sentence. She submits that if the Court is now unable to provide a tangible, direct or immediate benefit to Ms. Block, the inability is the result of the natural and inevitable ending of her incarceration, her pregnancy, and Amber’s infancy.
 Counsel relies upon a series of decisions in which the Supreme Court of Canada has held that the consideration of inherently time-limited conditions should be heard even if the dispute has been rendered academic by the passage of time, citing Tremblay v. Daigle,  2 S.C.R. 530; Trang v. Alberta (Edmonton Remand Centre), 2004 ABQB 497; and New Brunswick (Minister of Health and Community Services) v. G.(J.),  3 S.C.R. 46. The rationale expressed by the Court in these decisions is that in such cases, if the court is ever to provide guidance, given the transient nature of the conditions giving rise to the issue, it will likely be through a case which has become moot.
 The defendants submit that Ms. Block has not established the direct interest necessary to establish standing. Counsel submits that in this case, Ms. Block has not been directly affected by the decision to cancel the Mother-Baby Program at ACCW. She was not incarcerated there when the decision was made, and has not been incarcerated in any provincial correctional facility since the program was cancelled. They further submit that the effect of the program’s cancellation on her decision to request a federal sentence is not a direct effect for the purpose of determining private standing of the decision to cancel the program.
 Madam Justice Saunders described the test for private standing as follows in the Downtown Eastside decision at para. 29 as follows:
I would not accede to these several submissions. The law on private interest standing is, in my view, well stated by the judge. Ms. Kiselbach must be able to establish a direct, personal interest in the impugned provisions: Finlay v. Canada, at 622. In words approved in Finlay from the High Court of Australia decision in Australian Conservation Foundation Incorporated v. Commonwealth (1980), 146 C.L.R. 493, 28 A.L.R. 257, Ms. Kiselbach must establish that she "is likely to gain some advantage, other than the satisfaction of righting a wrong, upholding a principle or winning a contest" or to "suffer some disadvantage, other than a sense of grievance or debt for costs".
 Mr. Justice LeDain, speaking for the Court, described the requirement of a direct causal relationship between the grievance or harm and the challenged action in Finlay v. Canada (Minister of Finance),  2 S.C.R. 607 at pp. 622-623:
The American requirement of "nexus" or "directness", as it is sometimes referred to (cf. Joint Anti-Fascist Refugee Committee v. McGrath, 341 U.S. 123 (1951), per Frankfurter J. at pp. 152-53), stems from the special constitutional requirement of case or controversy for federal jurisdiction under Article III of the Constitution, and for this reason the American cases on standing must be treated with some caution. I am of the opinion, however, that a similar requirement of directness or causal relationship between the alleged prejudice or grievance and the challenged action is implicit in the notions of interference with private right and special damage. I note that Thio, op. cit., pp. 5-6, refers to [page623] the general requirement for standing in administrative law as being that of a "direct, personal interest”.
 I agree that, with respect to Ms. Block, the transient nature of both her pregnancy and term of incarceration have rendered the issue moot. However, I am also of the view that the precise difficulty with respect to private standing in her case is not mootness, but the absence of a sufficiently direct nexus or relationship between the grievance and the harm. At the time the action was commenced Ms. Block had already received a federal sentence of incarceration. Thus, from the outset of the action she was beyond the reach of a practical remedy, even if the program had been re-instituted the day after the action was commenced because she had been sentenced to a period of incarceration in the federal corrections system. I conclude that, apart from her claims for relief pursuant to s. 24(1) of the Charter, Ms. Block does not have a direct, personal interest in the action sufficient to accord her private interest standing with respect to the balance of the relief sought.
 Ms. Block submits that, in addition and in the alternative, she should be accorded public interest standing to seek all of the relief claimed in the action. The defendants submit that she should not be accorded public interest standing because any one or more of the women more directly affected by the cancellation of the Mother-Baby Program could bring the action.
 The test for public interest standing was set out in Canadian Council of Churches v. Canada (Minister of Employment and Immigration),  1 S.C.R. 236 at p. 253 [Canadian Council]:
It has been seen that when public interest standing is sought, consideration must be given to three aspects. First, is there a serious issue raised as to the invalidity of legislation in question? Second, has it been established that the plaintiff is directly affected by the legislation or if not does the plaintiff have a genuine interest in its validity? Third, is there another reasonable and effective way to bring the issue before the court?
 In the present case it is conceded that there is a serious issue raised. I find that while Ms. Block was not directly affected, she does have a genuine interest in the validity of the legislation. The crux is then the third question whether there is another reasonable and effective way to bring the issue before the court.
 In Canadian Council, Mr. Justice Cory framed the issue as follows at pp. 252-253:
The whole purpose of granting status is to prevent the immunization of legislation or public acts from any challenge. The granting of public interest standing is not required when, on a balance of probabilities, it can be shown that the measure will be subject to attack by a private litigant. The principles for granting public standing set forth by this Court need not and should not be expanded. The [page253] decision whether to grant status is a discretionary one with all that that designation implies. Thus undeserving applications may be refused. Nonetheless, when exercising the discretion the applicable principles should be interpreted in a liberal and generous manner.
 The defendants have identified a class of persons who are more directly affected by the cancellation of the program. However, the question is not whether there is someone more directly affected by the legislation than Ms. Block who could initiate a challenge, but whether such a person would do so. This was expressed in Fraser v. Canada (Attorney General),  O.J. No. 5580 (S.C.J.) [Fraser], as follows at para. 109:
Thus, in order to find that there is a reasonable and effective alternate means to litigate the issue, the A.G. must prove, on the balance of probabilities, that:
(a) there is a person who is more directly affected than the applicants; and
(b) that person might reasonably be expected to initiate litigation to challenge the legislation at issue.
In order to show there is a "reasonable and effective" alternative, it is necessary to show more than a possibility that such litigation might occur. The "mere possibility" of a challenge by a directly affected private litigant will not result in the denial of public interest standing: Canadian Bar Association v. British Columbia (Attorney General) (1993), 101 D.L.R. (4th) 410 (B.C.S.C.) at 417; Grant v. Canada (Attorney General),  1 F.C. 158 (F.C.T.D.), aff'd  F.C.J. No. 830 (C.A.), leave to appeal refused  S.C.C.A. No. 394 (S.C.C.) at pp. 198-9.
 The vulnerable status of the members of the class of potential litigants is an important element in the analysis. As Ducharme J. in Fraser stated at para. 114:
The "reasonable likelihood" that an individual SAWP worker could or would initiate this Charter challenge must be assessed with common sense. As McPherson J. held in Unishare Investments Ltd. v. R. (1994), 18 O.R. (3d) 603 (G.D.), aff'd  O.J. No. 4009 (C.A.), leave to appeal refused  S.C.C.A. No. 616 (S.C.C.), where individuals on the economic margins are affected by a law it is not reasonable and not realistic to expect that they will be able to mount a legal challenge to its constitutionality.
 In view of the vulnerable situation of the other potential litigants and the absence of other proceedings, I am not satisfied that the persons more directly affected than Ms. Block might reasonably commence proceedings to challenge the legislation at issue in the action. In the circumstances, I have concluded that it is an appropriate case for the Court to exercise its discretion to grant Ms. Block public interest standing to enable the adjudication of the entire action as pleaded.
 In the result, the defendants’ application is dismissed.